On appeal from Superior Court of New Jersey, Law Division, Somerset County, L-1652-02.
The opinion of the court was delivered by: Chambers, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Coburn, Grall and Chambers.
Plaintiff Distributor Label Products appeals from the order of January 19, 2007, granting summary judgment in favor of defendant PNC Bank. Plaintiff seeks to hold PNC Bank liable for checks drawn on plaintiff's account with PNC Bank and thereafter fraudulently indorsed. Plaintiff's failure to exercise ordinary care, however, led to the fraudulent endorsements. This failure bars its claim against PNC Bank, unless PNC Bank also failed to exercise ordinary care. See N.J.S.A. 12A:3-406. Plaintiff has made no showing that PNC Bank failed to exercise ordinary care. Under these circumstances, plaintiff has no recovery against PNC Bank. We affirm.
Plaintiff was the victim of numerous embezzlement activities by its former bookkeeper, defendant Michael Alessandrini. At issue in this appeal is Alessandrini's embezzlement of a group of checks drawn on plaintiff's PNC Bank account and payable to Spinnaker Coating, Inc.
The fraud perpetrated by Alessandrini regarding the Spinnaker checks worked this way. Alessandrini prepared checks payable to Spinnaker, which was a legitimate vendor of plaintiff. He fraudulently represented to Joseph Braun, plaintiff's president, that the checks were necessary to pay invoices. The checks were drawn on the bank account plaintiff had with PNC Bank and were signed by Braun. Alessandrini then deposited the checks into his account with Fleet Bank*fn1 which he held in the name of Dynamic Data Solutions. He forged the endorsement on some of these checks, and marked others "for deposit only" with his account number. The Spinnaker checks were dated between June 15, 1999, and October 30, 2000.
In its Fourth Amended Complaint, plaintiff alleged that PNC Bank had improperly debited plaintiff's account for the Spinnaker checks, and plaintiff asserted breach of contract and negligence claims against PNC Bank for doing so. After numerous motions for summary judgment and motions for reconsideration, the trial judge, on April 7, 2005, entered summary judgment in favor of plaintiff and against PNC Bank in the sum of $121,916.05, representing the amount of the Spinnaker checks negotiated after February 11, 2000, and the trial judge thereafter certified the judgment as final. That order was then appealed.
While the appeal was pending, the case went to trial against PNC and other parties regarding Alessandrini's embezzlement involving other checks. Plaintiff lost at trial.*fn2
The Appellate Division then reversed and remanded the appeal involving the Spinnaker checks on the basis that the matter was improperly certified as final. On remand, PNC Bank once again moved for summary judgment, and that motion was granted by order dated January 19, 2007, accompanied by a written decision. That order is the subject of this appeal.
When reviewing a decision on a motion for summary judgment, this court employs the same standard applied by the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). In order for a motion for summary judgment to be granted, the movant must show "that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment ...